International humanitarian law binds all of the parties to the military conflict in Afghanistan, including non-state armed groups, Afghan government forces, and the United States and coalition forces. Fundamentally, it imposes upon these warring parties legal obligations to reduce unnecessary suffering and protect civilians and other non-combatants. However, the specific legal context of conflict in Afghanistan and the specific applicable rules of international humanitarian law have changed over time.
The war between the United States and Afghanistan started at least by October 6, 2001, when U.S. air attacks on Afghanistan began. This war was an international armed conflict—a conflict between opposing states. The law applicable to international conflicts includes the four Geneva Conventions of 1949, to which Afghanistan and the United States are party,122 and the Hague Regulations of 1907, which are commonly accepted as customary international law.123
On December 22, 2001, power was transferred to an Interim Authority as the sovereign power of Afghanistan, chaired by Hamid Karzai and established by the December 5, 2001 Bonn Agreement, endorsed by U.N. Resolution 1383 (2001).124 Six months later, Hamid Karzai was elected by an Afghan loya jirga to the presidency of the transitional administration of Afghanistan; he was inaugurated on June 19, 2002.
As of June 19, 2002, and possibly as early as December 22, 2001, the international armed conflict between the United States and Afghanistan concluded. Since the end of the international conflict, hostilities have been part of a non-international (also referred to as an internal) armed conflict. U.S. forces in Afghanistan are now operating in the country with the acquiescence of the Karzai government, and hostilities fall under provisions of the Geneva Conventions applicable to non-international armed conflict. The primary law applicable to non-international armed conflicts is article 3 common to the Geneva Conventions. Protocol II to the Geneva Conventions, applicable to non-international conflicts, has not been ratified by Afghanistan or the United States, but most if not all of its provisions are recognized as customary international law and are therefore also applicable.125 In addition, certain provisions of Protocol I, including many of those concerned with the protection of the civilian population, are also recognized as reflective of customary international law and are also applicable.126
During a non-international armed conflict, international humanitarian law as the lex specialis (specialized law) takes precedence, but does not replace, human rights law. Persons under the control of a party to an internal armed conflict must be treated in accordance with international humanitarian law. But where that law is absent, vague, or inapplicable, human rights law standards still apply. Human rights law includes, among other things, the International Covenant on Civil and Political Rights127 and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,128 both of which have been ratified by the United States and Afghanistan.
Human rights standards applicable to military and police forces who are carrying out law enforcement or investigative operations—including arrests and searches—include the U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the U.N. Code of Conduct for Law Enforcement Officials.129 These standards apply to military forces when they are operating in a law enforcement context.130
122 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 75 U.N.T.S. 31, entered into force Oct. 21, 1950; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 75 U.N.T.S. 85, entered into force Oct. 21, 1950; Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention), 75 U.N.T.S. 135, entered into force Oct. 21, 1950; Geneva Convention relative to the Protection of Civilian Persons in Time of War (Third Geneva Convention), 75 U.N.T.S. 287, entered into force Oct. 21, 1950.
123 Convention (IV) respecting the Laws and Customs of War on Land of 1907 (Hague Regulations), 3 Martens Nouveau Recueil (ser. 3) 461, 187 Consol. T.S. 227, entered into force Jan. 26, 1910.
124 According to the Bonn Agreement, art. 1: “An Interim Authority shall be established upon the official transfer of power on 22 December 2001. . . .” Art. 3: “Upon the official transfer of power, the Interim Authority shall be the repository of Afghan sovereignty, with immediate effect.” See Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions, Bonn, Germany, signed December 5, 2001.
125 Protocol II (1977) Additional to the Geneva Conventions of 1949 (“Protocol II”).
126 Protocol I (1977) Additional to the Geneva Conventions of 1949 (“Protocol I”).
127 International Covenant on Civil and Political Rights (ICCPR), opened for signature December 16, 1966, 999 U.N.T.S. 171 (entered into force March 23, 1976, and acceded to by Afghanistan January 24, 1983 and ratified by the United States on June 8, 1992).
128 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, annex, 39, U.N. Doc. A/39/51 (entered into force June 26, 1987; ratified by Afghanistan April 1, 1987 and by the United States on October 21, 1994).
129 U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, U.N. Doc. A/CONF.144/28/Rev.1 (1990); U.N. Code of Conduct for Law Enforcement Officials, G.A. res. 34/169, annex, 34 U.N. GAOR Supp. (No. 46) at 186, U.N. Doc. A/34/46 (1979), adopted by the U.N. General Assembly on December 17, 1979.
130 Ibid. In accordance with the commentary to article 1 of the Code of Conduct for Law Enforcement Officials, in countries where police powers are exercised by military authorities. whether uniformed or not, or by state security forces, the definition of law enforcement officials shall be regarded as including officers of such services.